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versão impressa ISSN 1806-6445

Sur, Rev. int. direitos human. v.3 n.5 São Paulo dez. 2006

http://dx.doi.org/10.1590/S1806-64452006000200008

Toward an effective international legal order:
from co-existence to concert?

Tom Farer

ABSTRACT

In forbidding the use of force except in self
defence against armed attach or when authorised by the Security Council, the
UN Charter appears as the culminating development of a system of international
order based on the doctrine of state sovereignty. The cumulative result of international
law-related acts, omissions and declarations of the Bush Administration since
its inception can be construed as a fundamental challenge to the sovereign state
system. The Administration's stated security strategy is one possible response
to undoubtedly grave challenges to national and human security. In fact, only
institutionalised partnership between the U.S. and the next tier of consequential
states can hope to address those challenges successfully in part because only
it would have the requisite legitimacy. That partnership or concert could be
organised within the UN framework albeit intensifying its hierarchical elements.

From its birth in the minds of European elites
roughly four centuries ago until the latter part of the Twentieth Century, international
law was seen to facilitate, as it expressed the terms of, coexistence among
politically organised communities recognising no superior authority.1
It arose gradually out of the defeat of Hapsburg imperial ambitions and of the
associated Papal claims to govern the spiritual and moral lives of all the peoples
in Christendom. In a process analogous to the alluvial development of order
among the indigenous inhabitants of remote villages without formal political
institutions, the leaders of European communitiesenjoying de facto
independence from one another yet living in close connection and sharing similar
cultures, histories and values, so they did not see each other as different
speciesinevitably developed shared understandings about the nature of
their relationship and the proper way of dealing with cases where sovereign
rights overlapped or where the locus or indicia of sovereignty were uncertain.

In general, rulers were to live like property
owners, free to do pretty much what they willed with their respective estates.
The United Nations Charter carried the logic of equal rights and duties further
by prohibiting the exercise of force to deprive states of territory and the
autonomous decision-making and law enforcement activities which are coterminous
with the idea of a sovereign state.2

Throughout the Cold War, the Charter prohibition
dominated discourse about the obligations of states. Yet during the approximately
four and one-half decades that elapsed between the founding of the United Nations
and the manifest end of that war, the United States, using either regular forces
or proxies, invaded Guatemala, Cuba, the Dominican Republic, Grenada and Panama,
while the Soviet Union did the same to Hungary, Czechoslovakia and Afghanistan.
In addition, both ignored the ostensible sovereign rights of other states by
employing a range of illicit means less flamboyant than invasion to manipulate
their internal politics.3 When
it came to disregarding Charter constraints on intervention generally and the
use of force in particular, obviously the superpowers were not alone. France,
for instance, made and unmade governments in West Africa at its discretion.

Some of these prima facie delinquencies
were condemned by most academic international lawyers and also by huge majorities
in the General Assembly of the United Nations, and a regional treaty organisation,4
seemingly determined to maintain, with marginal if any exceptions, the position
that the only legitimate uses of force under the Charter are for self-defense
against and actual or imminent armed attack or are authorised by the Security
Council.5 Insofar as old-fashioned
plundering aggression is concerned, the decisive response to Iraq's invasion
of Kuwait in 1991 evidenced the continuing strength of collective support for
the integrity of borders in the wake of the Cold War. But while in its authorisation
of Desert Storm, the United Nations appeared to reaffirm the long-recognised
prerogatives of sovereignty, it has to some degree attenuated them by authorising
intervention in countries primarily to protect their populations from murder
and misery whether resulting from the collapse of public authority (Somalia
and Haiti 2) or its abuse combined with awful civil conflict (Sierra Leone and
Liberia) or its abuse after putschists seize public authority (Haiti 1) or a
murderous civil conflict aggravated by foreign intervention (Bosnia). Last year's
unauthorised invasion of Iraq, coming not long after NATO's humanitarian intervention
in Serbia over the issue of Kosovo and seen in light of the multiple delinquencies
of the superpowers during the Cold War and of France's multiple interventions
in the supposedly independent states of West Africa have led some commentators
to conclude that international law has lost at least temporarily its capacity
to serve as a central guidance mechanism for international relations.6
That remains to be seen. Arguably it is simply failing to a much greater than
traditional extent to guide American foreign policy.

An authoritative legal system certainly is more
than an archipelago of functional regimes. However effectively a blend of rules
and principles, sometimes embedded in formal bureaucratic institutions, may
as an observable matter stabilise behaviour and expectations concerning a wide
array of subject areas as diverse as the uses of the seas and the protection
of the chicken-breasted sloth,7
they will not constitute a legal order unless they are seen as instances of
a general system of authority that applies reasonably effectively to all states
and addresses the existential concerns of human communities which include but
is not limited to the question of who may use force under what circumstances.
The system must also have broadly accepted rule for identifying which other
rules are legal in character in the sense of commanding a respect superior to
all other societal norms, what H.L.A. Hart8
called 'the rule of recognition'.

Consent by state authorities, whether manifest
in a formal text or in consistent practice, has been the international system's
rule of recognition. I see no evidence of dramatic change in this respect, but
rather a gradual or gradually more open move toward what might be called law-making
and interpreting by a 'sufficient consensus'. Nowhere is this more evident than
in the area of human rights. Twenty-five years ago, when their human rights
behaviour was challenged, a significant number of countriesincluding such
powerful ones as the People's Republic of Chinawould still noisily invoke
an alleged sovereign immunity to external appreciation of internal practices.
Today such a defence is rarely if ever made.9
Governments stopped invoking the sovereignty defence when it ceased to resonate
with their peers. In effect, they conceded that the norm of sovereignty had
thinned out despite their objections

I do not want to overstate this point. The ramparts
of old-fashioned sovereignty are still strongly manned. Only within the past
year, a cross-section of U.N. members balked at endorsing an idea, championed
by Canada and other proponents of humanitarian intervention, that sovereignty
was conditional on a state meeting its obligations to protect the security of
its peoples.10 The tension
between the previously dominant value of state security and the growing demand
to emphasise human security (with state security as a contingent means to that
end)11 remains high and divides
not only affluent democratic states from many at best semi-democratic, less-developed
ones, but also elites within many states, including the democratic ones. In
the failure of the United States to secure even a bare majority of Security
Council votes for its proposed essay in regime change in Iraq, a country with
a monstrous regime, one could read the continued cling of governing elites to
the deflatingprerogatives of state sovereignty.

The Retreat of American internationalism

If, as the neo-conservative writer Robert Kagan12
affirms, Europeans (the Germans above all) now personify belief in the law-guided
resolution of interstate disputes by peaceful means, while Americans recognise
force as the inevitable arbiter, then we are witnesses to something close to
a reversal of historical roles. At the 1898 Hague Conference convened at the
instance of the Russian Czar to promote world peace, the chief U.S. representative
spoke of war as "an anachronism, like duelling or slavery, something that international
society has simply outgrown", and proposed agreement on compulsory arbitration
in the event that interstate disputes could not be resolved by diplomacy.13
Although the U.S. recognised an exception for those 'differences' that were
"of a character compelling or justifying war", the German delegation rejected
its proposal, arguing that "treaties to limit arms and provide for 'neutral'
arbitration of disputes negated [Germany's] most important strategic advantage:
the ability to mobilise and strike more quickly and effectively than any other
nation".14 In any
event, the Germans argued, war, both in its ends and its means, is a prerogative
of sovereignty not subject to judgment by third parties, a view not radically
at odds with the raging hostility of American conservatives to the prospect
of American war making being audited by the new International Criminal Court.15
Indeed, insofar as ends are concerned, it echoes in the views of certain quite
respectable contemporary scholars.16

Of course, the difference between law-drenched
American rhetoric and the German raison d'etat softened when elites of
the two states looked beyond relations between what the American lawyer-statesman
Joseph Choate referred to as the "great nations of the world"17
to relations with what the American historian John Fiske18
called "the barbarous races".19
In a similar vein, the influential turn-of-the-20th century German intellectual,
Heinrich von Treitschke, called international law mere "phrases, if its standards
are also applied to barbaric peoples". "To punish a Negro tribe",
he wrote,"villages must be burned, and without setting examples of that kind,
nothing can be achieved. If the German Reich in such cases applied international
law, it would not be humanity or justice but shameful weakness".20

I do not want to overstate the parallel between
German insistence on the prerogatives of sovereignty (and the consequent legitimacy
of force as an instrument of statecraft) and the claims of the Rightists who
now govern the United States. To begin with, von Treitschke rejected the idea
of legal limits on the means as well as the ends of war. In stark contrast,
as it has prosecuted the wars first against Afghanistan and then Iraq, the Bush
administration has for the most part celebrated its strict adherence to the
laws of war, going so far as to proclaim a new historical era in which technology
makes it possible to target evil rulers rather than the societies they subjugate.
Moreover, the administration has in part attempted to ground its recourse to
force on interpretations of widely recognised legal and ethical rules rather
than claims about the unreviewable prerogatives of sovereignty.21

Invoking the Charter-recognised right of self
defence against an armed attack in the case of a de facto government
(Afghanistan's Taliban) that provides safe haven to a well organised terrorist
organisation that had struck repeatedly at American targets, killed more Americans
than died at Pearl Harbor (when the Japanese attack precipitated U.S. entry
into World War II), and threatens continuing assaults, is not a dubious stretch
of the applicable norm. After all, the NATO states, including the smaller European
countries that are normally among the strongest supporters of the Charter and
the rule of law in international affairs, recognised the 9/11 terrorist attacks
on New York and Washington as acts of war,22
as did the Security Council itself when it adopted a resolution recognising
the applicability of the right of self defense under the circumstances created
by the attack.23

Iraq was a stretch, but, Bush administration
defenders have argued, no greater than the one made by NATO when it bombed Serbia
into submission over Kosovo, an action deemed technically illegal but nevertheless
'legitimate' by the Independent International Commission on Kosovo composed
of the sort of cosmopolitan progressives committed to the minimisation of force
in international affairs and the reinforcement of international institutions
and law.24 In the Kosovo
case, recourse to force was considered and finally approved by a multilateral
organisation of democracies (NATO) responding to the threatened commission of
a crime against humanity (mass ethnic cleansing), about to be committed by a
regime recently complicit in other such crimes and also of the crime of aggression
(against Bosnia). In Iraq, the U.S.backed by one Permanent Member of the
Security Council and a mixed bag of thirty or so other statesacted to
enforce Security Council resolutions under Chapter VII following repeated findings
by the Security Council25
of material breach of the 1991 cease fire agreement by the government of Saddam
Hussein, a recidivist aggressor (Kuwait 1991, following Iran 1982).Moreover,
in the preceding decade the Council had either acquiesced in or endorsed more
limited military actions against Iraq by the U.S. and the United Kingdom for
violations of the conditions of the 1991 cease fire and also for the defence
of the Kurdish and Shiite populations from a renewal of gross human rights violations,
bordering in the former case on genocide.26

But Iraq looks like a merely modest stretch only
when considered in isolation from the acts and claims that have marked American
foreign policy since the advent of the Bush Administration in January 2001.
When seen, however, against the backdrop of the National Security Strategy issued
by the White House in200227
and other statements from the Bush Administration,28
Iraq looks a good deal more like a revolutionary challenge to the Charter systemand
not just to its unprecedented restraint on recourse to forcefor the Charter
and the United Nations itself are only parts of a larger design implicit in
the initial surge of international institution building following World War
II.

What drove the architects of the United Nations,
the international financial institutions and the General Agreement on Tariffs
and Trade (GATT) was a belief that the balance-of-power system marked by the
commitment of national elites to the ceaseless competitive accumulation and
exploitation of power is too dangerous to be endured and incompatible with the
growing demand for welfare rather than warfare states.29
An international free-trading system, facilitated by stable currencies (the
IMF agreement) and the most-favoured-nation rule (the GATT), would make natural
resources available to all countries, thereby removing one of the classical
incentives to aggression and fostering interdependence. These political and
economic institutions were the first elements of a management system for the
global society and economy that would hopefully replace the global war system
which from 1914-45 achieved slaughter on a planetary scale. Outside the Communist
Bloc, the envisioned trading system and its associated financial order gathered
pace and then was propelled forward by seismic changes in information, communications
and transportation technologies, so that sixty years after World War II, we
actually have the inter-connected world dimly imagined by the architects of
1945. We have what is called loosely 'globalisation', but it has occurred largely
through private actors and without a proportional development of public management
institutions, above all in the arena of political/military affairs, where the
Cold War largely paralysed the Security Council and limited co-operation to
avoiding catastrophic conflict between the superpowers.

The collapse of Soviet power in 1991 coincided
roughly with a resurgence of economic and psychological buoyancy in the United
States to produce an international environment with some similarities to the
one prevailing in 1945, but with differences the potential effects of which
were not immediately clear. Similarity consisted in the widely sensed dawning
at least in Western polities of a new epoch filled with vast potential for co-operation
among leading states to ameliorate the human condition.30

The first difference was the absolutely unrivalled
nature of American military power. The Soviet equilibriator was gone with no
state or coalition of states on the horizon to replace it. For the first time
in human history, one country could deliver militarily decisive conventional
force to any corner of the globe within weeks if not days of a decision to do
so. Both celebrants and critics of American pre-eminence began referring to
the now ubiquitous 'Unipolar World'.31
A second difference was the reality of an interdependence and integration probably
beyond the imaginings of the architects of the post World War II institutions.
This was not just a matter of transnational trade and investment flows, but
of transnationally integrated production and service networks and of the vulnerable
communication and energy systems that made such integration viable.

A third difference between the conditions prevailing
in 1945 and 1991 was the cumulative effect of market integration and the revolution
in transportation and communications on traditional culture and political awareness
in the global periphery, together with an extraordinary acceleration in population
growth. Demographic bloating has filled the countryside with redundant people;
the communications and transportation revolution has given them the incentive
and the means to try their luck in cities, far from traditional sources of moral
authority and the anchoring rhythms of rural family life, where they have formed
pools of socially combustible materials particularly in the misgoverned societies
of Africa and West Asiapools which, given the openness of borders and
the ease of movement, are washing over the frontier between the West and the
rest. From these pools, leaders driven not by poverty but rather by the challenge
of consumerist, libertarian culture to their sense of identity and authority
and impelled by a sense of humiliation for the political/military weakness of
their societies in the face of Western cultural and military power, can draw
recruits for guerrilla war against the United States, its allies and its collaborators.

Given these salient features of the post-Cold
War world, in 1991 one might reasonably have looked to American leaders for
a burst of institutional and normative creativity similar to the one they had
exhibited after World War II. On the one hand, the United States enjoyed far
greater relative military power and economic and cultural reach than it had
sixty years earlier and, on the other hand, it faced a set of interrelated threats
to its long-term national security and the welfare of its people that could
be analogised to the threat that Soviet power and Marxist ideology had posed.
But these threats lacked something at that point, namely a name, a face and
an address that could fit them into the manichaean template of American popular
culture.

In the years following the Soviet Union's dissolution,
Washington did emit a few rhetorical hints of new ambitions for the international
order usually in terms of a commitment to the planetary spread of free markets
and liberal democracy.32
And a handful of deeds, like the interventions, however reluctant, in Somalia,
Haiti and the Balkans could be construed as a germinating American commitment
to institutionalisedmultilateraloversight of conditions in national societies
in order to assure some minimum level of security for their inhabitants.

But other signs pointed in a very different direction
for American foreign policy. A paper produced by Pentagon planners during the
senior Bush's presidency and leaked to the press33
advocated the indefinite preservation of American strategic dominance, albeit,
interesting enough, by avoiding exploitation of that dominance in ways other
states would find threatening. The unilateralist tone of the Pentagon paper
had a bi-partisan echo in an address made in the early years of the Clinton
administration by its then United Nations Ambassador Madeleine Albright. In
it she declared that the Clinton administration would use international organisations
only to the extent they served to facilitate achievement of U.S. interests,
and would not hesitate to pursue U.S. goals unilaterally.34
Since the future Secretary of State invoked as exemplary instances of unilateral
action the Reagan era invasion of the tiny Caribbean island of Grenada and Bush
senior's invasion of Panamamilitary adventures widely seen as illegal
under international lawAlbright appeared to be announcing U.S. independence
of the global order's core norms, as well as from its core institution: the
United Nations.

Yet the Clinton administration's actual policies
included attempts to secure Congressional appropriation of funds needed to pay
U.S. budgetary arrears at the United Nations, support for international environmental
treaties, andat the very end of its mandatesigning the Statute of
the International Criminal Court, the symbol-rich target of right-wing spleen.
So despite sounding occasionally like his right-wing critics, Clinton's policies
were not out of line with the general movementor at least the abstract
preferenceof American foreign policy during the 20th century in favour
of the progressive expansion of international law to the end of regulating statecraft
and even the internal behaviour of states to the extent it shocks the conscience
of the U.S. electorate. Nevertheless, to anyone anticipating a leap forward
rather than a slight increment in the reach of international institutions and
law, Clinton's policies had to be disappointing.

Among other reasons for his caution was the disappearance
in the foreign policy arena of a certain discipline imposed by the high stakes
of Soviet-American competition in the Cold War. With those stakes off the table,
the arena of foreign policy became completely accessible to antagonists in the
cultural wars that had been burning brightly in America since the Vietnam era.
In that arena, the sort of unashamed definers of national interest in brutally
competitive terms who echoed the contempt of the turn-of-the-century German
elite for the arbitrament of law in international relations could coalition
with right-wing religious groups sympathetic to manichaean imagery and, opportunistically,
with libertarians hostile to public regulation and management whether national
or international (but also dubious about overseas adventures) and ethnic diasporas
anxious to employ American power to defeat adversaries of their overseas kin,
rather than to manage international conflict in accordance with general behavioural
norms.35 As I have suggested,
one of the bonds among these groups was hostility to the constraints on national
discretion that international institutions, usually encapsulated as the United
Nations, and international law were seen to impose. And for reasons too complex
to summarisehere36 and, for
that matter, not entirely clear,37
during the two decades before the Clinton presidency, they had increasingly
influenced the tone and imagery of political discourse.

The disputed presidential election of 2000 brought
these disparate antagonists of the international-law-and-institution-building
project to the centre of world power. Out went Clinton's mild incrementalism.
In came a ferocious assault on the International Criminal Court, followed quickly
by rejection of the proposed enforcement protocol to the Biological Weapons
Convention, abortion of efforts to increase the transparency of the global financial
system in order to reduce its complicity in official corruption, tax evasion
and money laundering,38 and
repudiation (without tender of alternatives) of proposed restrictions on activities
contributing to global warming (i.e. the Kyoto Protocol), to name the best known
moves.

These and other acts and omissions, however inimical
to the vision animating the founders of the UN Charter system, did not yet challenge
the system itself. That challenge awaited the precipitating event of the 9/11
terrorist attack and the ensuing declaration of a right and a readiness to wage
preventive (misleadingly labelled 'pre-emptive') war against any state whose
actions or attitudes are deemed by the government of the United States to constitute
a threat, whether or not imminent, to the nation's security. Even with respect
to statesas distinguished from shadowy terrorist organisations with no
fixed address or sunk capitalthe Administration proposed to eliminate
rather than deterto wage wars of choice against states that could become
threats.39 Such an expansion
of the right of self defence is simply incompatible with the Charter system.

As a kind of corollary of its preventive war
doctrine, the Bush administration announced its intention of restarting nuclear
weapons development40 in
order to create very low yield warheads that could notionally be used against
buried command posts and laboratories.41
In this way it assaulted another pillar of the system of order that evolved
under the umbrella of the Charter, namely the implicit doctrine that, except
possibly to avert nation-threatening strategic defeat, nuclear weapons would
be used only to deter a nuclear attack or as a way of mitigating the consequences
of one and of retaliating. Simultaneously it violated at least the spirit of
the nuclear non-proliferation treaty in which non-nuclear states relinquished
the right to acquire such weapons in return for a promise of the nuclear powers
to reduce their nuclear weapon stockpiles and work toward nuclear disarmament.42
Hence the subtext of its declaration was an intention to rely on the threatened
application of American power rather than a multilateral regime to limit the
proliferation of nuclear weapons.

Unilateral enforcement of a selective non-proliferation
regime challenged not just the Charter but the entire four-century old system
of state sovereignty with its corollary of equal legal rights. For what is more
central to the idea of sovereignty than discretion to determine how best to
defend the sovereign state's political independence and territorial integrity?
It is one thing for states to relinquish by treaty the right to choose weapon
systems most likely to deter attack. What is left of sovereignty if a single
state, acting unilaterally, can deny to others the one weapon which might deter
it from imposing its will on any and every issue?

The prospect for international legal order
in light of Iraq

The escalating costs of the Iraq occupation and
the refusal of certain important states to contemplate helping bear them without
the Security Council's assuming a prominent role in overseeing the political
transition in that country has to be a learning experience, however unwelcome.
One lesson is that most of the world, the developed as well as developing, clings
to the essential elements of the system of order provided by the Charter's substantive
and procedural rules. Above all, there remains powerful support for the presumptive
invalidity of any armed intervention by one state in another without Security
Council authorisation or, at least in Africa, without authorisation by a regional
organisation.

The Bush Administration has given no indication
that it is unsympathetic to this broad consensus in favour of restraints on
unilateral recourse to force, so long as the rules do not apply to it. That
is hardly surprising. From the parochial perspective of a Unipower, the happiest
normative world is one in which it alone or it and whatever other country it
anoints, are uniquely licensed to use force for purposes other than self defence
against an actual or imminent attack. Most other countries, however, seem indisposed
to license exceptions for the countries that deem themselves exceptional. So
we are, for the moment, at an impasse.

Normative dissonance in the core security realm
coexists, of course, with the diurnal invocation of allegedly authoritative
rules and principles in the various parts of the archipelago of transnational
regimes. Governments process asylum and extradition requests, enforce fishing
regulations in zones defined by the Law of the Sea Treaty, try in some measure
to protect endangered species, comply in varying degrees with the rules of the
World Trade Organisation, and so on. The dynamics of transnational social life
generate expectations, and the power of reciprocity enforces a fair measure
of respect for norms just as convenience and efficiency and inertia foster a
degree of support for the institutions in which many of them are embedded, elaborated
and executed. But in the absence of any collective experience of being part
of an integrated system of order reflecting and protecting the deepest values
of its subjects, respect for expectations, I propose and fear, rests only on
immediate calculations of utility, and that is precarious ground on which to
stand in hard times or when faced with issues that cut across the grain of important
domestic interest groups.

A generalised reduction in the authority (and
hence pull toward compliance) of international law and multilateral institutions
is only one of the possible costs stemming from the present reluctance of the
United States to accept normative restraints on its own choices concerning the
ends and means of statecraft. More immediately important is its potential impact
on the norms and processes for limiting the use of force and on the efforts
to strengthen restraints on the further development and deployment of weapons
of mass destruction. But the gravest probable side effects stemming from the
Bush administration's hostility to the international-law-and-institution-building
project are what the economists call 'opportunity costs'.

The states with the collective capacity to act
are not addressing effectively either the misery scattered in wide swathes around
the globe or the not wholly unrelated sources of both nihilistic and instrumental
violence that are ravaging human and eroding the foundations of national security.
The diffusion and stunning enhancement of technological knowledge and its products,
along with the population explosion, urbanisation, increased environmental pressures,
wrenching challenges to traditional belief systems and identities and unprecedented
levels of political, economic, social and cultural inter-penetration will continue
to generate or intensify pathologies, including searing inequalities in life
chances that will not heal themselves. With varying degrees of co-operation
and success, national elites confront certain symptomslike transnational
terror networks or genocidal conflicts or starvation that catches the eye in
some wretched place by vastly exceeding the quotidian tragedy of death from
malnutritionbut at most poke desultorily at their roots.

Going to the roots requires levels of resources,
human and material, that no one state or even the NATO states together can deploy.43
Only a concert that includes the most important non-Western states could gather
the requisite aura of legitimacy and irresistible power. In a sense, the concert
would be a multilateral hegemonic project, but the hegemon in this case would
be constituted by elites governing, in most but not all cases democratically,
a majority of the world's peoples though only a small number of its national
states.

At the time of its adoption, the U.N. Charter
purported but actually failed to embody great-power commitment to global governance
at least in the key area of peace and security, because the two superpowers
were already girding for a traditional great power grapple and lesser states
were clinging to their empires. While the Cold War's end seemed to offer a new
opportunity for replacing the traditional competitive state system with an historically
unprecedented co-operative one, neither the Unipower nor important regional
actors like China, Russia and France were psychologically disposed to transformas
distinguished from very incrementally adjustinga structure marked by limited
co-operation often negotiated bi-laterally one issue at a time. NATO's inability
to secure Security Council sanction for intervention in Kosovo underscored the
limits. And shortly thereafter, when the current American administration replaced
Clinton's, the United States began withdrawing even from the incipient order-building
project that had lumbered glacially forward during the Cold War and accelerated
very modestly in its immediate aftermath when the 'like-minded' medium and small
states, led by Canada and Norway,44
tried to improve human security through an International Criminal Court, the
Conventions on Child Soldiering and Landmines, and other initiatives rejected
by American conservatives.

The terrorist attack of 9/11 left no ground for
complacency about the conditions of the global status quo. But instead of animating
a renewed search for a co-operative order, it initially empowered U.S. advocates
of a violent, imperial project to reconstruct a recalcitrant worldthe
American Prometheus unbound.45
Now, however, following the shambolic execution of their first step to that
end, amidst a rising tide of popular hostility even among the polities of traditional
allies (never mind those of hitherto moderate Islamic societies like Indonesia
and Malaysia), the advocates of an imposed new order have lost the initiative.46

That loss could be temporary, however, awaiting
only a new act of catastrophic terrorism. For the warriors of the right, unlike
many of their scattered opponents, recognise the volatile and dangerous conditions
in which we live andoffer a transformational vision. An anarchical system
of sovereign states is compatible with American and, indeed, human security,
they argue, only when all its constituents are capitalist democracies.47
Hence the American superpower, with the aid of the willing, must shatter the
Westphalian frame and impose an inegalitarian order, constraining the sovereignty
of states deemed dangerous or feckless, while fostering over timeby whatever
means prove efficient in given casesthe reshaping of authoritarian nations
in the image of democratic capitalism.

Iconic invocations of the United Nations as an
alternative means of order cannot compete with this proactive project. As presently
constituted, the institution, despite its brilliant Secretary-General, does
not measure up either to the immediate or to the deeper threats to order sketched
above. Invoking it amounts to nothing more than an affirmation of sluggish incrementalism
in the face of catastrophic risks. Calls for institutional reform, particularly
of the Security Council, also have little political traction particularly within
the unipower, at least in part because the envisioned reforms by themselves
(adding members and possibly limiting the veto) appear to be and are largely
formal responses to a substantive challenge. Conservatives make a persuasive
case for the proposition that, in the world as it has become, a system of order
guided and inspired primarily by the negative virtue of mutual tolerance is
a ship with many captainsa few even homicidalpulling on the wheel
as the iceberg nears.

The multilateral alternative to the unilateralist
project must match the latter's visionary response to the present and prospective
danger. In order to match, it too would have to move beyond Westphalian anarchy,
but the departure would be far less abrupt and the break more narrow. From the
beginning, after all, there were hierarchical elements in the Charter system
coinciding with its purification of the Westphalian paradigm. How else can one
describe the Charter's allocation of enforcement powers to a Security Council
of only fifteen members, five of them permanent and endowed with veto power
and, as originally conceived, power to direct UN military operations through
the medium of officers drawn from their respective armed forces?48
Moreover, since the Charter did not provide for World Court review of Security
Council decisions, arguably it accorded to the Security Council unlimited authority
to determine not only the nature and duration of enforcement measures, but also
the existence of the jurisdictional conditions-'a threat to the peace'-requisite
for applying them.

Over the past decade or so, the Council has authorised
the use of coercion, economic sanctions and force in pursuance of ends going
well beyond the prevention, limitation or termination of inter-state conflicts
and the full-scale civil wars spilling dangerously across borders that were
the focus of concern at the time of the Charter's adoption. In doing
so, it built on a precedent from the 1970s when it had found the white racist
de facto government of Southern Rhodesia (now Zimbabwe) to be a threat to the
peace even though at the time it was facing little internal resistance and so
did not need to pursue its dissidents across neighbouring frontiers.49
The nub of the matter, then, is that a system of global governance characterised
by close co-operation among today's leading states within the framework of the
Security Councilfor instance to force the termination of a suspected WMD
development program or to resolve an incipient ethnic conflict or remove a government
committing gross violations of human rights or to assume stewardship over a
state foundering in the hands of kleptocratswould not be entirely alien
to the Charter paradigm, although it would be a great leap beyond the status
quo. Only such a leap, however, is likely to reach the accumulating challenges
of our era. With the exception of Rhodesia (a residual case of decolonisation),
and the first intervention in Haiti (where in effect the U.N was endorsing a
regional organisation's judgment about who constituted a country's legitimate
government,50 the Council
has concerned itself with the internal conditions of states only in instances
of humanitarian crisisfamine, genocide, mass slaughterand even then,
only erratically. But it has never authorised intervention to deal with the
chronic violators of human rights; regimes that survive through such
regular applications of torture, arbitrary detention and exemplary assassination
that they come to seem normal, much less regimes like the Angolan that torture
and maim their citizens indirectly by stealing the national patrimony rather
than producing public goods or, like the Libyan one, appropriate much of the
patrimony to support a dictator's fantasies.

As far as one can tell, no proposal for threatening
the delinquents in any such case with ejection and the transitional placement
of their battered polities under United Nations trusteeships, possibly coupled
with positive incentives to the miscreants for pre-emptive reform, has ever
been contemplated, much less put on the agenda. And for that there have been
at least three reasons. One was the previous lack of American interest in the
reconstruction of awful but not utterly failed states. Another was the certain
opposition within the Council both from one or more of the Permanent Members
and of representatives from the developing world, filled as parts of it are
with regimes of the sort just described. A third was the absence of a mandate
or a mechanism for developing comprehensive plans for the correction of those
state structures that guarantee the perpetuation of mass poverty, joblessness,
functional illiteracy, chronic illness and accumulating alienation from the
new global order. At least with respect to the Middle East, the first of those
reasons no longer prevails, possibly pending the outcome and ultimate cost to
the United States of intervention in Iraq. The second and third, the latter
being largely determined by the former, remain bars to action.

A multilateral project liable to compete politically
with the unilateral one that dominates the present Presidential Administration
in the United States must include a strategy for inducing their removal. The
only conceivable means to that end would be an historic compromise between the
American Unipower and the next stratum of consequential states. The former would
rejoin the great architectural projectbegun with American support after
World War IIto construct a normative and institutional system sufficient
for the tasks of global governance. Rejoining requires that the United States
surrender its claim of entitlement to exceptional status and its disinclination
to reconcile its preferred means and goals with those of other states. The latter
would have to embrace the idea that the primary purpose of governance must be
positive action by all means necessary to protect the common good, whether in
the face of immediate or of merely developing threats to peace and security,
and the relevant security would be declared that of human beings, not merely
of 'states' which has been a euphemism for any elite in control of a determinate
national territory. Such a compact between the hegemon and the next tier of
consequential states would carry the seed of a real legal order encompassing
and vitalising the current archipelago of regimes. The historical conditions
in which the elites of potential concert members find themselves give them a
breadth of common interests without historical parallel and yet they continue
to rely primarily on the antiquated instrument of bilateral diplomacy to co-ordinate
co-operation, where they are inclined to co-operate, and to avoid or mitigate
conflict.

The move to collaboration can be accomplished
within the framework of the United Nations and without reform of the Security
Council. If there can be a Group of Eight self-tasked primarily with co-ordinating
action in the economic realm, there can be a Group of Ten, Twelve or Fifteen,
for that matter, accepting wider responsibilities, meeting regularly at the
Ministerial and even more frequently at the higher bureaucratic levels to co-ordinate
policy. It could be supported either by an independent secretariat or one custom-built
within the U.N., in either event drawing on national and international institutions
for intelligence to assist it in identifying and prioritising issues and developing
operational plans for co-ordinated action using all the instruments of statecraft.
Once approved by the relevant governments, where the execution of plans required
armed intervention, they would be brought formally to the Security Council for
authorisation. Since in the first instance, the concert would certainly include
all of the Permanent Members plus India, Japan, Germany, Brazil and possibly
such emerging market states as South Africa, Turkey, Indonesia and Mexico, one
could reasonably anticipate approval even from an unreformed Council.

The concert would be open to additional members
sharing its commitments (and able to contribute substantially) to extending
the benefits of a globally integrated economy, mitigating the painful incidents
of growth and planetary integration, limiting the spread of weapons of mass
destruction, battling transnational terrorist groups and commercial mafias,
and deterring illicit force and crimes against humanity. Based on those constitutive
principles, a group of such diversity, size and power should be able to endow
decisions of the Security Council reflecting the group's previously negotiated
consensus with greater legitimacy than those decisions enjoy today, in part
because the concert's backing would induce the expectation of effective enforcement.

Legitimacy, of course, is a matter of degree.
The world confronts a clash not of civilisations but of cultures: the humanist
on the one hand, and the chauvinist/chiliast, on the othera clash that
is internal to each historic civilisation. The concert and its purposes are
expressions and instruments of the humanist project. They are concerned with
spreading to all peoples the good things of this world and they call for co-operation
and tolerance across national, religious and ethnic lines. Thus they are implicitly
hostile to the world views of nationalist fanatics and religious extremists
all over the world, not least in the United States.

Conclusion

Movement toward such a concert of leading states
may have to await disasters more awful than 9/11, or it may be driven by the
steady accumulation of costs to order and welfare evidencing ever more vividly
the insufficiency of the present patchwork of contested norms and uncoordinated,
generally weak institutions. Or it may not occur at all. Whatever its insufficiencies,
the present order of things, like any established allocation of power and authority
and wealth, has about it an aura of inevitability and is encrusted with accumulations
of interest furiously resistant to change. The easiest response to traumas large
and small is supposing that doing more of the same but with greater energy and
larger resources will pre-empt new ones.

Like the man with a hammer seeing all problems
as nails, the U.S. with its hypertrophied military power51
is inclined to see problems as amenable to military solutions, a tendency aggravated
by the remarkably effective ideological assault within the country on the idea
of public authority as an instrument for addressing inequalities of wealth and
power and also by the appeal to significant electoral groups of manichaean and
apocalyptic templates for identifying threats and prescribing responses.52

Washington nevertheless remains the more plausible
source of any initiative to fashion an effective concert. Such an initiative
could begin with a deceptively modest call for regular consultation among the
states in question assisted by a planning secretariat consisting of seconded
experts and a directorate of senior officials, one from each state with direct
access to their respective heads of government. In theory, of course, a group
of Washington's potential partners could shape such a proposal, thereby strengthening
the hand of American multilateralists. But given their heterogeneity, their
habit of dealing with the United States bi-laterally, and their individual political
and social preoccupations (as well as the sensitivity of most non-European national
elites to measures and precedents tending to shrink their own sovereign prerogatives),
as a group they are unlikely instigators of new architectural proposals. And
proposals emanating only from the Europeans may lack the heft needed to engage
American interest.

"Old ideas", John Dewey wrote almost a
century ago, "give way slowly; for they are more than abstract logical
forms and categories. They are habits, predispositions, deeply ingrained attitudes
of aversion and preference".53The
realist assumption that co-operation among powerful states can never be more
than a matter of temporary expedience, a mere tactic in the immutable struggle
for power, is an old idea lodged in the consciousness of most governing elites.
Yet in the face of the present grave threats to the security and affluence of
the powerful, some once confirmed realists are beginning to move toward the
constructivist view that identities and interests are plastic. Once the personification
of the realist optic in public affairs, former Secretary of State Henry Kissinger54
advocates U.S. engagement with China, rejecting the call for restraint on economic
intercourse in order to slow China's growth.55
A legal order based on a concert of leading states is possible, if the constructivist
intuition gains similar converts.

NOTES

1.
Despite its overall utility, the word 'coexistence' may be a bit misleading
in that particularly the larger participants in the construction of international
law did not concede to the smaller ones a right to persist and the large ones
did not for several centuries eschew forceful appropriation of a part of each
other's territory and people. Coexistence did not, for instance, prevent Poland
from being thrice partitioned by its more powerful neighborsRussia, Prussia
and Austriabetween 1764 and 1795. Still, while one state might occasionally
seize the territory and peoples of another, until it did, it had no recognised
right to be concerned with the ways in which its neighbour organised its society
and economy, legitimised its rule, or coerced its population. Those were matters
to be determined at the discretion of the various kings and oligarchs. One could
therefore say, as others have, that initially the system's only commonor
shall we say constitutionalvalue was tolerance of diversity.

2.
T. Farer, "Law and War", in C.E. Black and R.A. Falk (Eds.), The Future of
the International Legal Order, Princeton: Princeton University Press, 1969.

3.
S.C. Schlesinger & S. Kinzer, Bitter Fruit: The Story of the American
Coup in Guatemala, Cambridge, MA: Harvard University Press, 1999; M. Kinzer,
All the Shah's Men: An American Coup and the Roots of Middle East Terror,
Hoboken, NJ: John Wiley & Sons, 2003.

5.
For a more detailed analysis of the practice of states in construing Charter
restraints on the use of force, see T. Farer "Panama: Beyond the Charter frame",
American Journal of International Law, vol. 84, 1990, pp. 503-515; T.
Farer, "A paradigm of legitimate intervention", in L.F. Damrosch (Ed.), Enforcing
Restraint: Collective Intervention in Internal Conflicts, New York: Council
on Foreign Relations, 1993; T. Farer, "Humanitarian Intervention Before and
After 9/11: Legality and Legitimacy", in J.L. Holzgrefe and R.O. Keohane (Eds.),
Humanitarian Intervention: Ethical, Legal and Political Dilemmas, Cambridge,
Cambridge University Press, 2002; T. Farer, "Beyond the Charter frame: Unilateralism
or condominium?" American Journal of International Law, vol. 96, 2002,
pp. 359-364; T. Farer, "The prospect for international law and order in the
wake of Iraq", American Journal of International Law, vol. 97, 2003,
pp. 621-628. See also C. Joyner, "Reflections on the lawfulness of invasion",
American Journal of International Law, vol. 87,1984, pp. 131-144.

6.
Glennon - in M. J.Glennon, "The new interventionism", Foreign Affairs,
vol. 78, May/June, 1999, pp. 2-7; Limits of Law, Prerogatives of Power: Interventionism
after Kosovo, New York, Palgrave, 2001- sees the exhaustion of the Charter
system of collective security. Though disagreeing with Glennon's analysis and
conclusions at almost every point, Thomas Franck (T. M. Franck, "Break it, don't
fake it", Foreign Affairs, vol. 78, July/August, 1999, pp. 116-118) seems
to end with the conclusion that international law is temporarily overborne by
the violent reassertion of raison d'etat and sees no early prospect for
its revival.

7.
In Steven Krasner's crisp formulation (S. Krasner, "Structural causes and regime
consequences: regimes as intervening variables", in S. Krasner (Ed.), International
Regimes, Ithaca: Cornell University Press, 1983, pp. 1-21.), regimes are "implicit
or explicit principles, norms, rules, and decision-making procedures around
which actors' expectations converge in a given area of international relations".

9.
I was able to witness this type of state behavior first-hand by virtue of my
membership on (and for two terms, presidency of) the Inter-American Commission
on Human Rights of the OAS (1976-83).

10.
A report"The responsibility to protect" (available online at <http://www.dfait-maeci.gc.ca/iciss-ciise/pdf/Commission-Report.pdf
>, access on September 11, 2006.)was commissioned by the International
Commission on Intervention and State Sovereignty established by Canadian Foreign
Minister Lloyd Axworthy after Kofi Annan gave a controversial speech to the
U.N. General Assembly on sovereignty and intervention in 1999. Despite the claim
by the Secretary General that the U.N. Security Council had "favorably received"
the Report, "the concrete results of the meeting appear mixed. There is very
little appetite in the Council to commit to principles that would force its
hand": S. N.MacFarlane, J. Welsh & C. Thielking, "The responsibility to
protect: Assessing the report of the international commission on intervention
and state sovereignty", International Journal, vol. 57, 2003, pp. 489-502.

11.
As the Human Security Program of the Canadian Department of Foreign Affairs
and International Trade defines it, "Human Security is a people-centered
approach to foreign policy which recognizes that lasting stability cannot be
achieved until people are protected from violent threats to their rights, safety
or lives".See < http://www.humansecurity.gc.ca/psh_brief-en.as>,
access on September 11, 2006.

12.
R. Kagan, Of Paradise and Power: America and Europe in the New World Order,
New York: Knopf, 2003.

13.
P. H. Maguire, Law and War: An American Story, New York: Columbia University
Press, 2000, p. 48.

15.
The Clinton administration opposed inclusion of crimes against peace (i.e. the
illegal recourse to force) among the offences subject to the Court's jurisdiction
(see Human Rights Watch, "Human Rights Watch condemns United States'
threat to sabotage International Criminal Court", Press Release, 1998, July
9, available at <http://www.hrw.org/press98/july/icc-us09.htm>,
access on September 11, 2006.) Conservatives (e.g. J. Bolton, "The global prosecutors",
Foreign Affairs, vol. 78, January/February, 1999, pp. 157-164.), opposed
the Court as such insofar as it would sit in judgment on any Americans even
if charged with genocide or other crimes against humanity.

16.
J. Yoo, "International law and the war in Iraq", American Journal of International
Law, vol. 97, 2003, pp. 11-23; cf. R. Wedgwood, "The fall of Saddam Hussein:
Security Council mandates and preemptive self-defense", American Journal
of International Law, vol. 74, 2003, pp. 24-34; P. Zelikow, "The transformation
of national security: Five redefinitions", National Interest, vol. 71,
2003, pp. 17-28.

17.
P. H. Maguire, Law and War: An American Story, New York: Columbia University
Press, 2000, p. 69.

29.
According to George and Sabelli (S. George & F. Sabelli, Faith and Credit:
The World Bank's Secular Empire, Boulder, CO: Westview Press, 1994.), "again
and again, the Proceedings of Bretton Woods stress the ruling obsession
of these leaders of a war-torn world: Never to revert to the 'competitive currency
depreciations, imposition of exchange restrictions, import quotas and other
devices that had all but stifled trade' and plunged the planet headlong into
its most devastating conflict ever". On John Maynard Keynes' influence on the
creation of especially the IBRD, see R. Skidelsky, John Maynard Keynes: Fighting
for Freedom, 1937-1946, New York: Penguin, 2002.

37.
In a recent review of books on the Bush administration, the liberal economist,
Paul Krugman (P. Krugman, "Strictly Business", New York Review of Books,
November 20, 2003 pp. 4-5.) writes of the right-wing's success in setting the
tone and parameters of public discourse and, after trying to explain its success,
ends by admitting to a certain puzzlement.

43.
To convey a sense of the gap between needs and proposed responses to them, I
note that the United States proposes to spend up to $150 million for schools
in Indonesia that would offer the children of poor Muslims an alternative to
those run by Islamic radicals that prepare students more for jihad than successful
participation in the global economy. One hundred and fifty million dollars is
slightly less than the annual budget of the public schools of my home town (Littleton,
Colorado), population 40,000. Indonesia's population is 207 million. Pakistan,
where the malign effect of radical madrasas is better known, has a population
of 153 million.

44.
These have formed "The Human Security Network", which grew out of a bilateral
agreementthe Lysøen Declaration and Partnership Agendabetween
Norway and Canada. Other states include Austria, Greece, Ireland, Jordan, Mali,
the Netherlands, Slovenia, Switzerland, Thailand and (as an observer) South
Africa.

45.
A leading exponent of this view is Charles Krauthammer (C. Krauthammer, "The
real new world order: the American empire and the Islamic challenge", The
Weekly Standard, November 12, 2001, p. 25; "A new policy", Townhall.com,
June 8, 2003, online at <http://www.townhall.com/columnists/charleskrauthammer/ck20010608.shtml.>
). For a more nuanced view, see S. Mallaby, "The reluctant imperialist: Terrorism,
failed states, and the case for American empire", Foreign Affairs, vol.
81, March/April 2002, pp. 2-7. For a skeptical view, see J. Kurth, "Confronting
the unipolar moment: The American empire and Islamic terrorism", Current
History, December, 2002, pp. 403-408.

47.
Even some thinkers hitherto associated with the political center or even the
center-left in their overall ideological disposition M. Ignatieff, "The
burden", New York Times Magazine, January 5, 2003, pp. 22-27, 50-53 is
one example, New York Times columnist Thomas Friedman another-are attracted
by the perceived opportunity to realize the so-called "democratic peace" (see
M. Doyle, "Kant, liberal legacies, and foreign affairs", Philosophy and Public
Affairs, vol. 12, Summer, 1983, pp. 205-235) through the medium of an American
Imperium. In his post-9/11 columns (a collection of which was recently published;
see T. Friedman, Longitudes and Attitudes, New York: Anchor, 2003), Friedman,
although critical of many details of implementation, argues that the goals of
the Bush administration are boldly idealistic and just and in the American and
human interest.

55.
J. Mearsheimer, The Tragedy of Great Power Politics, New York: W.W. Norton,
2001.

TOM FARER

Dean of the Graduate School of International
Studies of the University of Denver, Director of its Center for China-United
States Cooperation and Honorary Professor of Peking University. A former President
of the Inter-American Commission on Human Rights of the Organization of American
States and of the University of New Mexico, he is an Honorary Editor of the
American Journal of International Law and on the Editorial Board of the Human
Rights Quarterly. He has been a Fellow of the Smithsonian's Woodrow Wilson Center,
the Carnegie Endowment and the Council on Foreign Relations and has served in
the U.S. State and Defense Departments. His articles have appeared, among other
places, in the London and New York Review of Books, Foreign Affairs and Foreign
Policy, the American Journal of International Law, World Politics, International
Organization and the Harvard and Columbia Law Reviews. His most recent book
is Transnational Crime in the Americas (Routledge 1999) and his most
recent work, 'The Interplay of Domestic Politics, Human Rights & U.S. Foreign
Policy', is in Wars on Terrorism and Iraq: Human Rights, Unilateralism and
U.S. Foreign Policy (Routledge 2004 forthcoming).